Posts Tagged “Defamation Act 2009”
 A few weeks ago, the Science Gallery in TCD hosted a fascinating event on the chilling impact of the law of libel on scientific debate. Chaired by Myles Dungan, the speakers were Simon Singh, who successfully defended a two year libel battle with the British Chiropractic Association, his lawyer Robert Dougans, cardiologist Peter Wilmshurst who is currently being sued for libel in the biggest ongoing medical libel case, and his lawyer Mark Lewis. A video of the event is now up on YouTube.
The cases against Singh and Wilmshurst are English, but, as an article in today’s Irish Times shows, Irish law is to the same effect:
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Reform of the UK’s libel laws could have interesting consequences for Irish law. A cartoon from a story in this week’s Economist sets the scene:
A few extracts from the article accompanying the above cartoon:
England’s strict libel laws face a shake-up
Selling legal services to people in other countries is a lucrative business for Britain, but where the libel industry is concerned the trade is increasingly unwelcome. Foreigners can sue each other in English courts, even when publication has been almost wholly elsewhere. .. For foreigners and locals alike, mounting a defence is costly and tricky. …
The fear of libel suits may chill academic debate (big medical companies have sued several scientists for criticising their products). Outfits campaigning against beastly regimes abroad say they have had to defang their reports because of the threat of litigation.
Many want the law to be fairer, simpler, quicker and cheaper. … Anthony Lester QC … submitted a private member’s bill which would make most of the important changes that reformers have been seeking. One would replace the flimsy “fair comment” defence (which easily gets tied up in questions of fact) with a new one of “honest opinion”. … A second change would replace the “responsible publication” defence, which puts more weight on procedure than substance, with one of “public interest”. … A third part of the bill would make it harder for corporate bodies to sue. Moreover, any foreign claimant would have to show that he had suffered “substantial harm” in England. …
Lord Lester’s Bill is available here, analysed on Banksy’s blog and on Inforrm’s blog; a note of caution is sounded by Zoe Margolis whilst Paul Tweed is critical. Though important, the Bill is simply one part of the current conversation about libel reform in the UK. Another important part is the difference of opinion between two retired Law Lords (Hoffmann and Steyn).
Of course, be careful what you wish for. In Ireland, the Defamation Act, 2009 has reformed our libel laws. However, by the time it had worked its way through the Department of Justice and the Oireachtas, it was considerably watered down by departmental conservatism and political compromise; but now that it has been enacted, there is little political will for further reform. Lord Lester’s bill is carefully drafted; but if it suffers the same fate as the Irish bill did, it may not achieve its intended end, and the opportunity may be lost.
Finally, if Lester’s Bill, or some recognisable version of it, becomes law, then English law will have achieved a better balance in defamation law than Irish law does. It could also have profound effects on the future of Irish defamation law. The 2009 Act it is an incomplete reform: its new centerpiece defence of fair and reasonable publication is unworkable; its changes relating to damages are very timid; it confirms that corporations can sue for damages; and it does nothing to prevent libel tourism (the phenomenon of plaintiffs touring for the most congenial legal climate in which to take a libel action). Ireland would then be faced with the following choice. Dublin could replace London as the libel tourists‘ most favoured destination; or we could introduce similar amendments ourselves. It will be interesting to see how all this pans out.
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 The second Annual Report of the Press Council and the Office of the Press Ombudsman (pdf) was launched yesterday. Speaking at the launch, Dermot Ahern, the Minister for Justice, Equality and Law Reform, announced that he had, on 21 April, signed the Order granting the Press Council of Ireland recognition as the Press Council for the purposes of the Defamation Act, 2009. The full text of the Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010) (pdfs here and here) is as follows [with added links]:
Defamation Act 2009 (Press Council) Order 2009 (SI No 163 of 2010)
I, Dermot Ahern, Minister for Justice, Equality and Law Reform, being satisfied that The Press Council of Ireland complies with the minimum requirements specified in Schedule 2 to the Defamation Act, 2009 (No 31 of 2009), hereby, in exercise of the powers conferred on me by section 44 of that Act, make the following order with respect to which, pursuant to subsection (7) of that section, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:
1. This Order may be cited as the Defamation Act 2009 (Press Council) Order 2010.
2. It is declared that The Press Council of Ireland shall be recognised for the purposes of the Defamation Act 2009 (No 31 of 2009) as the Press Council.
Given under my Official Seal,
21 April 2010.
DERMOT AHERN,
Minister for Justice, Equality and Law Reform.
This is a very important development. It completes the process of recognition for the Press Council under the 2009 Act; it allows the press to participate fully in the Press Council system; and it affords complainants a quick and easy form of redress.
Media reports of the launch focussed on other issues: Ahern criticises media’s Oireachtas coverage (Irish Times); Ahern concerned over press intrusion (Irish Times); Most of 351 complaints against press about truth and accuracy (Irish Times); Press report (Editorial, Irish Times); Ahern lays down the law on Twitter and Facebook lies (Irish Independent); Social media users ‘not exempt from defamation laws’ (Irish Examiner); 5% increase in complaints to Press Council (Irish Examiner).
Bonus link: Simon Singh, who will be speaking at the Science Gallery in TCD on Thursday evening, writes in today’s Telegraph that reform of libel law is long overdue, and in particular, that bolder defences are necessary for those writing about matters in the public interest.
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 On Thursday evening, from 6:30pm to 8:00pm, the Science Gallery in TCD will host what promises to be a fascinating event on the chilling impact of the law of libel on scientific debate:
Libel reform has become increasingly relevant in scientific research and journalism in the UK and Ireland, as highlighted in recent times by the high profile case of Simon Singh. Libel laws have been accused of intimidating journalists, scientists and publishers into silence for fear of legal persecution. The effect has been dubbed “libel chill” and the Libel Reform Campaign argues ‘Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.’
Master of ceremonies for the evening will be Myles Dungan, and speakers will include Simon Singh, who successfully defended a two year libel battle with the British Chiropractic Association, and his lawyer Robert Dougans. Cardiologist Peter Wilmshurst who is currently being sued for libel in the biggest ongoing medical libel case, and his lawyer Mark Lewis, will also speak at the event.
There will be much discussion of amending the libel laws. For once, Irish law is ahead of the curve. The Defamation Act, 2009 eventually reformed Ireland’s outdated libel laws (though, of course, more could have been done). English law is likely soon to follow suit.
Today’s Times Online carries a very important article by Anthony Lester (Lord Lester of Herne Hill, QC, human rights lawyer, free speech campaigner, Lib Dem peer, and Adjunct Prof of Law, UCC) argues that England’s law of libel must be rebalanced in the scales of justice, since it has a chilling impact on free speech, which is the lifeblood of democracy. English libel law, he says, “is notoriously costly, complicated and stifling of free speech”. The programme for government for the UK’s new government promises to “review libel laws to protect freedom of speech”. Lester therefore proposes to publish on Thursday (just in time for the Science Gallery event) a Private Member’s Bill on Defamation to help in that review. An Editorial in the Times urges the UK’s government to “seize Lord Lester’s template of legal sanity” which thoroughly “deserves to become law”. It is the latest step in an ongoing campaign for reform of the UK’s libel laws, and it is discussed by Lester on BBC radio’s Today programme this morning. Listen, and then buy a ticket for Thursday’s event.
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 The Council of Europe has just published the Venice Commission’s Report on Blasphemy, insult and hatred – Finding answers in a democratic society (Science and Technique of Democracy No 47, 2010) (cover left) (earlier related publications here). Religious accommodation, mutual understanding, and social diversity constitute a significant challenge for modern western democracies. This report argues that “diversity is undoubtedly an asset, but cohabiting with people of different backgrounds and ideas calls for a new ethic of responsible intercultural relations”. The recent Irish response has been to introduce an offence of blasphemy in the Defamation Act, 2009. At its conference last weekend, the Labour Party debated and passed three motions (111, 112, 113) which condemned the introduction of the offence of blasphemy, and called for its repeal, and called for a referendum proposing to delete the word “blasphemous” from the Constitution (presumably as part of its wholesale constitutional revision). This is welcome, but doesn’t go far enough: the entire free speech clause should be thoroughly reformed (especially if there is to be a convention to develop a new constitution). Of course, this might not be necessary in the short term, since the provisions might very well conflict with the current text of the constitution in any event.
This is not the case in Indonesia. On Monday, that country’s Constitutional Court held that a controversial 45-year-old law banning religious blasphemy was constitutional. Mahfud CJ held that the law did not contradict the country’s 1945 Constitution or its national ideology, known as Pancasila, which nominally guarantee freedom of religion.
Later in the week, Islamists – to predictable controversy – warned the creators of provocative TV show South Park that they could face violent retribution for depicting the Prophet Muhammad in a bear suit (BBC | Guardian here and here | Independent | Irish Independent | Irish Times | LA Times | The Daily Show with John Stewart). On Human Rights in Ireland, Liam Thornton considered whether such gratuitous mocking of religion is permitted under human rights law. Starting from David Keane “Cartoon Violence and Freedom of Expression” (2008) 30 (4) Human Rights Quarterly 845, and observing that South Park purposefully courts controversy and seeks to mock all religions and atheism in a gratuitous fashion, he concludes that the purpose of the controversial episodes
… was to show the mental acrobatics which have to be gone through to justify the limitation of freedom of expression from mocking of one groups beliefs, yet allowed to freely ridicule the religious beliefs of others. In the words of the South Park creators, they are “equal opportunity offenders”. To those who are offended by shows like South Park, which does not provoke hatred on the ground of religious belief, the solution is simple, change the channel.
I couldn’t agree more.
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 Simon Singh has become an unlikely poster boy for reform of the UK’s libel laws. On Thursday, in an important judgment on the defence of fair comment, the Court of Appeal made it considerably easier for him to defend a libel case being taken against him by the British Chiropractic Association (BCA). Singh is a science writer whose current concern is with the basis and efficacy of alternative treatments. He is the co-author (with Professor Edzard Ernst) of Trick or Treatment? Alternative Medicine on Trial (Bantam Press, 2008; Amazon). On 19 April 2008, in a piece headlined Beware the spinal trap in the Guardian’s “Comment and Debate” page, he wrote:
The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.
The BCA sued Singh, alleging that this passage was libellous. Aoife McLysaght presented a compelling critique (via YouTube) to Ignite Dublin #3 about this case. To my mind, this is the first of the many worrying aspects of the case. I have already blogged here about the undesirability of allowing bodies such as the BCA to sue in defamation at all; perhaps this case will serve to hasten the reform of this undesirable aspect of libel law.
As to the case itself, section 7 of the UK’s Defamation Act, 1996, allows for a preliminary hearing on the issue of whether impugned words are capable of a defamatory meaning. section 14 of Ireland’s Defamation Act, 2009 (also here) is to the same effect. In an application by the BCA under section (see British Chiropractic Association v Singh [2009] EWHC 1101 QB, which is not available online so far as I can see) Eady J held that the impugned passage contained assertions of fact (”not a jot of evidence”; “bogus”) which would require to be proven true and not merely opinions which could amount to fair comment. This left Singh in an impossible position in seeking to defend the BCA’s libel claim. And things got worse, because Eady J refused Singh leave to appeal. However, the Court of Appeal granted leave, (see [2009] EWCA Civ 1154 (14 October 2009)) and last Thursday the Court (consisting of Lord Chief Justice Judge, Lord Neuberger MR, and Sedley LJ) allowed the appeal itself (see [2010] EWCA Civ 350 (01 April 2010); for some coverage see BBC | the Guardian at various stages over the last few days, especially: here, here and here | Irish Times | TimesOnline ). Read the rest of this entry »
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 Section 44 (also here) of the Defamation Act, 2009 (also here) provides that the Minister for Justice may by recognise a body as the “Press Council” , and Schedule 2 (also here) to the Act sets out the minimum requirements such a body must meet to be so recognised. The Irish media established a Press Council of Ireland and the Office of the Press Ombudsman with effect from 1 January 2009, and the Minister announced yesterday that this would be recognised as the Press Council for the purposes of the Act (here’s the press release, with added links):
The Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern, T.D., announced today that he is asking the Dáil and Séanad to approve an Order by him declaring the formal recognition of the Press Council of Ireland as the “Press Council”.
Minister Ahern said that the application from the Press Council of Ireland under section 44 of the Defamation Act 2009 has been examined with reference to the requirements in Schedule 2 of the Act and that he was satisfied that the application met those requirements.
These requirements involve the objectives of the Press Council, its composition, its independence, the appointment of independent directors, financial arrangements, the role and operation of the Office of Press Ombudsman and a code of standards.
Formal recognition will confer certain benefits on the Press Council. A significant benefit is that qualified privilege will attach to its reports and decisions as well as those of the Press Ombudsman. Subscription to the Press Council and adherence to the Code of Practice for Newspapers and Periodicals will strengthen the entitlement to avail of the new defence of reasonable publication in any court action [see section 26(2)(f) of the Act (also here)]. Non-members of the Press Council will be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of standards to avail of that defence.
There is more coverage here and here from the Irish Times. At a time when other countries are looking with favour on the Irish model, it heartening to see the final pieces of the Defamation Act jigsaw slotting into place.
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 It all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ. A month later, the spat was picked up by Trevor Butterworth writing on Forbes.com, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:
As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.
This was intriguing. By the end of the week, John Burns in the Sunday Times had the full story:
A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.
Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.
There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. Read the rest of this entry »
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